This FAQ is related to Courage to Resist’s “Resisting Individual Ready Reserve (IRR) recall” published February 2009. If this question is of interest to you, please read our overview first.
Since IRR members are not subject to the UCMJ, the military has no formal jurisdiction to take action against IRR individuals if they do not voluntarily report—and there are no corresponding civilian laws requiring IRR individuals to report.
—Resisting Individual Ready Reserve (IRR) recall by Courage to Resist. February 2009
This is probably the single most important and controversial statement in our overview.
Since the initial publication of the overview, we have added the following footnote:
This is a practical summation of the situation and not a legal declaration. Military legal experts are divided on this issue as a matter of law. However, the military has either not been able to—or has chosen not to—assert UCMJ “jurisdiction” over IRR resisters thus far. This has been the case since the 1991 Gulf War involuntary activations.
Upon further research, we believe this has been the case since the first and largest single IRR recall in 1961 (which occurred in order to support the Berlin airlift). Other significant IRR recalls took place in support of the Vietnam War (1968) and the Gulf War (1990-1991).
Nowhere in someone’s IRR activation orders, any military regulation, or in the UCMJ (Uniform Code of Military Justice) is this negative declared—that the UCMJ does NOT apply to the IRR.
The critical thing is that the UCMJ—which was created by congress to standardize military punishment (prior to the creation of the IRR program)—does not specifically cover members of the IRR.
The Army and Marines have made declarations in many places that they do have the right to take action against IRR resisters. However, they have not gotten Congress to update the UCMJ to expand its authority to do so. This may change at some point in the future, but there is no indication that such Congressional action is currently in the works. Were the UCMJ to be changed in the future to include the IRR, it is unlikely that such changes would be retroactive to current IRR resisters.
The military officially asserts that IRR soldiers are again subject to the UCMJ on the report date of their involuntary activation orders. However, the military also acknowledges that is has never taken judicial action against a IRR soldier for failing to report.
Members of the IRR should assume that the UCMJ applies to them the moment they physically step foot on the designated military facility as ordered by the IRR mobilization authority.